Often, when parties decide to separate, one spouse decides to relocate in order to restart their life or to move to be with a new partner. When children move with the relocating spouse, be it interstate, overseas, or even to a new town or city down the road, recent case law suggests that judges are highly critical of parents who move their children without the other parent’s knowledge or consent.
The Family Law Act (1975) and accompanying regulations and rules, which govern family law practice in Australian society, does not explicitly state how the courts must deal with relocation issues. Consequently, there is no rule against the relocation of children, yet the court applies the same principles as it would in determining parenting cases. In other words, the court regards the best interests of the child as the paramount consideration when deciding where children should live, along with the presumption (unless rebutted) that parents are to have equal shared parental responsibility for the child concerned.
Recently the case of Sora & Mikan and Anor [2013] highlighted the Court’s position on the relocation of children without the consent of the non-relocating parent.
The case concerned an unmarried couple who had a child in Japan. The mother was Japanese national and the father a New Zealand national. Whilst in Japan, the parties separated after the birth of their child but later reconciled and planned to move as a family to Australia to start anew after the tsunami. Initially, the parties visited Australia with the child, yet after a short period, the father returned to Japan for work whilst waiting on his job transfer to Australia. The mother and child followed a short time thereafter.
The father upon his return to Japan commenced a new relationship with another lady. Consequently, he told the mother he was planning to raise their child with his new girlfriend in either New Zealand or Australia. By this stage the mother, father and child were all located in Japan.
Without consent or notice given to the mother, the father obtained travel documents and moved with the child and his new girlfriend to Australia where he sought for the child to live permanently.
In covertly relocating the child, the Court took a contemptuous view of the father. The judge said the father’s conduct was both “premeditated and deceptive”, and that the father had placed a low priority on the “maintenance of a continuing relationship” between the child and the mother.
Significantly, the judge said:
“The father’s view of his relationship with his son appears to be born of a misconception that somehow parents have proprietary rights in children.”
As a result, the court determined it was in the best interests of the child that the mother be granted full parental responsibility and she was allowed to return to Japan with the child on a permanent basis. Overwhelmingly, the father had demonstrated a lack of insight into his parenting responsibilities and of the child’s needs.
You should seek our advice if you are thinking about relocating or if your estranged partner is thinking about relocating with your children because at Everingham Solomons we have the expertise and experience to assist you because Helping You is Our Business.
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